Persons

Question 1

natural personality begins

Answer 1

at conception if born alive

Question 2

live birth means

Answer 2

respiration or crying

Question 3

natural personality terminates

Answer 3

at death

Question 4

doctor certifies death when

Answer 4

there has been irreversible cessation of spontaneous respiratory and circulatory functions OR if on life support, irreversible total cessation of brain function

Question 5

juridical declaration of death possible when

Answer 5

person went missing in a scenario where death seems certain OR after they have been absent for 5 years

Question 6

juridical persons

Answer 6

are distinct and distinguishable entities

Question 7

domicile

Answer 7

of natural person is place of habitual residence

of juridical person, either state of formation or PPB

Question 8

domicile test =

Answer 8

presence + intent to remain

Question 9

prerequisites for marriage =

Answer 9

absence of a legal impediment
a marriage ceremony
mutual consent of both parties as expressed at the ceremony

Question 10

possible legal impediments to marriage =

Answer 10

an existing marriage

being related by blood within the fourth degree (adopted relatives count BUT relatives by affinity do not)

Question 11

requirements of a valid marriage ceremony =

Answer 11

performed by a third party qualified celebrant (religious authority, members of state judiciary and justices of the peace)
ceremonial formalities: marriage license, 2 witnesses, signed certificate - but absence doesnt nullify marriage

Question 12

mutual consent at marriage ceremony includes

Answer 12

both spouses and celebrant must have been physically present
parties must have verbally expressed consent
no vices: duress (actual and threatened violence); capacity (drunkenness); age (minors under 18 must have consent of parents, minors under 16 must have written permission from juvenile court)
–> if once of vices of consent present, may confirm

Question 13

annulment of marriage available when

Answer 13

there was a defect in the marriage to begin with (retroactive cancellation of marriage, vs. divorce as prospective cancellation)

Question 14

relatively null marriage

Answer 14

exists when vice of consent was present: duress, capacity, age.
if annulled, relatively null marriages produce civil effects of marriage until marriage is declared null by a court
only the person who was affected by the nullity (ie, was under duress) can bring the action for annulment

Question 15

absolutely null marriage

Answer 15

is void ab initio

no civil effects produced ever unless putative spouse doctrine applies

Question 16

putative spouse doctrine

Answer 16

when at least one party entered into a marriage that turned out to be absolutely null in good faith
good faith = honest and reasonable belief that no legal impediment existed to thee marriage
note: firsthand knowledge of the impediment vitiates good faith, being told secondhand and failing to investigate may also vitiate good faith

effect = gives good faith spouse civil effects of marriage

example:When there is bigamy, civil effects continue for the non-bigamous spouse until either (1) there is an official, judicial declaration of nullity or (2) the non-bigamous spouse remarries

Question 17

spousal support and action for anulment

Answer 17

interim spousal support is available for both relatively and absolutely null marriages
final spousal support is only available to spouses in a relatively null marriage, or innocent parties to a putative marriage

Question 18

duties of spouses during marriage =

Answer 18

fidelity, support, and assistance

Question 19

conflict of laws regarding marriage

Answer 19

If marriage was valid where originally contracted, or where parties were first domiciled as a married couple, then marriage is valid in Louisiana unless it violates public policy

Question 20

marriage terminates at

Answer 20

death
judicial determination of nullity
final judgement of divorce

Question 21

divorce actions available in louisiana are =

Answer 21

102 no fault divorce
103(1) no fault divorce 
fault divorce based on
adultery
abuse
felony conviction

Question 22

divorce action available when parties still living together

Answer 22

102 divorce: “service then separation”

divorcing spouse serves divorcee spouse
then spouses live separately for 180 days if no minor children of the marriage, or 365 if none

then moving party (either) files rule to show cause pleading that (1) the divorce petition was served, (2) that they have been continuously separated (3) for 180/365 days and (4) affidavit

At hearing, moving party places into evidence: petition, return of service of petition, rule to serve cause including affidavit, return of service of rule service, and additional affidavit alleging separation

then divorce is automatically granted by judge

unless parties reconciled

Question 23

civil effects of no fault divorces

Answer 23

102 divorce = community property is terminated at the date of filing the divorce petition, so community property could terminate before separation

103(1) divorce = community terminates at the date of filing the divorce petition, so necessarily after separation.

Question 24

divorce action available when spouses have been separated

Answer 24

103(1) divorce: separation prior to filing divorce

simpler and cheaper than 102 divorce

parties separate for 180 or 365 days, then file divorce petition

then divorce may be granted immediately, but subject to court’s docket.

requirements: separation must be voluntary on part of at least one party – has to be a choice to end the health of the marriage by at least one party (not just going elsewhere to work for 6 months)
procedure: typical suit procedure. default judgement available on 16th day after service of petition

Question 25

divorce after adultery

Answer 25

moving party has burden to show adultery: circumstantial evidence must lead fairly and necessarily to the conclusion that adultery has been committed - admission of adulterous spouse not sufficient alone; intercourse not necessary more expensive and confrontational than no-fault divorce once reconciliation has happened, fault divorce action unavailable

Question 26

divorce after felony conviction

Answer 26

If spouse is convicted of felony AND is sentenced to death or imprisonment at hard labor Then you can get an immediate divorce, no waiting period

Question 27

divorce after abuse

Answer 27

available with: proof of physical or sexual abuse of the spouse or a child of one of the spouses, regardless of whether there has been prosecution when a protective order or injunction was issued during the marriage seeking to protect spouse or a child from abuse after a contradictory hearing or based on a consent decree – then protective order stands in place of evidence hearing during divorce (note protective order could have been issued way back and still works)

Question 28

defenses to divorce

Answer 28

procedural hurdles not met | only substantive defense is reconciliation

Question 29

reconciliation in divorce context means

Answer 29

resuming parties’ life together with mutual intent to resume the marriage (fact analysis) court must consider all the circumstances – isolated sex does not constitute reconciliation when a fault-based divorce action was previously available, it becomes extinguished by reconciliation if you know about the fault (adultery) AND forgive or condone it.

Question 30

actions file-able with divoroce

Answer 30

injunction to prevent waste of community property; physical or sexual abuse; harassment against spouse or children can file child custody and support in same proceeding as divorce

Question 31

domestic violence proceeding during divoroce

Answer 31

Spouse who got an ex parte TRO, must hold contradictory hearing within 21 days, victim must prove abuse by preponderance of the evidence, hearing can resolve: property and child care issues, as well as relief from harassment and abuse

Question 32

spousal support is available as =

Answer 32

interim and final

Question 33

interim spousal support awarded on consideration of

Answer 33

one spouse has need (income not assets) other spouse has ability to pay (assets and income considered) consider any interim or final child support obligation consider standard of living during marriage fault is irrelevant terminates 180 days from judgement of divorce (can be extended additional 180 days if good cause shown)

Question 34

interim spousal support is intended to

Answer 34

maintain the economic status quo

Question 35

final spousal support

Answer 35

MAY be awarded based on the need of the claiming spouse (assets and income considered) the ability of the other spouse to pay (complete financial picture) claiming spouse must be free from fault prior to any action to terminate the marriage must be claimed within 3 year peremptive period of divorce note: in fault-based divorce, spousal support is presumed for innocent spouse; same for DV

Question 36

finding fault in spousal support proceedings

Answer 36

claiming spouse bears burden of showing she was free of fault (ie, testimony) paying spouse attempts to rebut court's standard = conduct was a serious and proximate cause of the separation includes: abuse, adultery, felony conviction PLUS habitual intemperance or cruel treatment (not just nagging); abandonment; defamation; attempted murder violation of marital duties of fidelity, support, assistance note: provocation or mental illness can be a defense to any of these faults

Question 37

spousal support determination considerations

Answer 37

``` TAF CRIEDD tax consequences age and health of parties financial obligations of parties including child support rehabilitation income and means earning capacity of both parties duration of the marriage domestic abuse ```

Question 38

final spousal support capped at

Answer 38

1/3 of paying spouse's net income except if DV present, then not capped and cab be paid as lump sum liberative prescription of 5 years to collect arrears

Question 39

modification of final spousal support

Answer 39

may be modified if circumstances of either party materially changes will be terminated if has become unnecessary remarriage of the paying spouse doesnt constitute a change of circumstance per se

Question 40

contributions to education and training

Answer 40

seperate claim from spousal support test = financial contribution to spouse's education and training + that increased spouse's earning power + to the extent that spouse did not benefit during marriage consider also: did paying spouse expect a shared financial benefit? what was the degree of detriment suffered in making these contributions? magnitude of benefit received by recipient spouse?

Question 41

primary consideration in every custody proceeding

Answer 41

the best interests of the child

Question 42

factors that bear on the best interest of the child in establishing and modifying custody rulings:

Answer 42

PAPA HELPS CHAMP ``` potential for abuse abusive history of a party prior relationships ability to nurture health emotional ties to child location preference of child (esp over 12) stability cooperation with other party history ability to provide (not financial) moral fitness past caregiver ```

Question 43

to modify a custody decree

Answer 43

if custody established by consent degree: - then petitioning parent must show there has been a material change in circumstances AND the proposed modification is in the best interest of the child if by considered decree: - change of circumstances is so deleterious to the best interest of the child as to justify a modification of the custody decree OR - by clear and convincing evidence that the harm caused by a change in environment is substantially outweighed by its advantages to the child

Question 44

hierarchy of custody arrangements

Answer 44

1. in accordance with the agreement of the parents (still review for BIOC tho) 2. parental joint custody (not to be awarded if parents are engaged in continuous acrimony and conflict). goal of physical custody allocation = assure frequent and continuing contact with both parents. must also designate a domiciliary parent. 3. parental sole custody. can be awarded if clear and convincing evidence shows is in BIOC 4. nonparent custodian. only awarded if nonparent can show substantial harm to child if custody is awarded to parent

Question 45

parents who dont get custody still may attain

Answer 45

VISITATION parent entitled to it unless, after a hearing, the court finds that visitation would not be in the BIOC OR if the natural parent's felony rape led to the conception of the child

Question 46

grandparents visitation

Answer 46

available if parents are not living as a couple (either unmarried living apart or married and filed for divorce) then grandparents can be granted visitation if in BIOC MAY ALSO obtain visitation if the parent of grandchild is deceased/interdicted/incarcerated (also parent's siblings)

Question 47

other relatives (including former step parents) visitation

Answer 47

available if parents are not living as a couple (either unmarried living apart or married and filed for divorce) must show extraordinary circumstances (includes de jure that the parent is an addict) court must consider = Parents fundamental constitutional right to make decisions regarding their children, and presumption that a fit parent will act in child’s best interest Length and quality of the prior relationship between child and relative seeking visitation Whether child is in need of guidance, enlightenment, or tutelage that can be best provided by this relative The preference of the child The mental and physical health of the child and relative

Question 48

if one parent seeking custody or visitation has a history of family violence, then

Answer 48

then abusive parent is presumed to recieve only supervised visitation definition of family violence = one incident that caused serious bodily harm or 2+ instances of family violence -may be rebutted by successful completion of a treatment program proof of sexual abuse completely bars custody and visitation

Question 49

in a 102 divorce, either couple may file the rule to show cause within

Answer 49

180 or 365 days of SERVICE of the petition on the other spouse

Question 50

proper venue to change custody arrangement

Answer 50

may file in domiciliary parent's parish OR parish where order initially issued

Question 51

emergency custody available?

Answer 51

yes, on a showing of immediate and irreperable injury is imminent -- may get ex parte custody order for 30 days

Question 52

remedies available to enforce compliance with custody order

Answer 52

contempt actions can be brought against parent who fails to exercise OR fails to allow custody or visitation prevailing parent to recieve actual expenses, counseling expenses, attorneys fees

Question 53

relocation of a child definition

Answer 53

the non temporary absence (more than 60 days) of a child | moved out of state OR more than 75 miles from child's principal residence, or objecting equal-custody parent

Question 54

relocation statute applies to

Answer 54

sole custodian, designated domicilary parent in a joint custody agreement; person who shares equal physical custody of a child; parent sharing equal parental authority; or a tutor of a child born out of marriage

Question 55

to relocate child, must

Answer 55

send notice by certified days 60 days before move other parent may object within 30 days of notice to overcome objection, parent with equal custody must show that move is in good faith, and is in BIOC

Question 56

initial custody determination jurisdiction test

Answer 56

home state test: state where child lived with parent for 6+ months before proceeding (or since birth if <6mo old) OR state which was the child's home within last 6 month, and where at least one parent still resides

Question 57

home state standard applies unless

Answer 57

child and both parents have left louisiana for 6 months then test is = child and one parent have significant connection to louisiana AND there is substantial evidence concerning the child's care in louisiana

Question 58

jurisdiction to modify custody order

Answer 58

the court that made the initial custody determination has exclusive, continuing jurisdiction UNITL child nor parents live in state child no longer has significant connection, nor substantial evidence available wihtin state OR where domiciliary parent's parish of domicile is

Question 59

child support considerations

Answer 59

consider the needs of the child | and the ability of the parents to support

Question 60

child support is paid until child reaches 18 unless

Answer 60

if child hasnt graduated from high school by 18, then can extend to 19 if unmarried, dependent, and full time student in good standing OR is developmentally disabled and in full-time secondary school, then till 22 OR adult with disability who is not capable of self-support and requires substantial care and personal supervision, but only if disability manifested before 18

Question 61

factors to consider amount of child support

Answer 61

needs of child and ability of parents to pay PLUS "income shares" model parents combined gross income minus preexisting child and spousal support, then follow schedule. parents pay from schedule based in percentage of combined gross income. minimum child support is $100/month adjustment for time spent with kid is only granted to nondimiciliary parent with joint custody when has physical custody for more than 73 days a year AND has increased financial burden AND domiciliary parent has decreased burden

Question 62

maternity

Answer 62

Proof by preponderance of evidence, mother is person who birthed the child

Question 63

surrogaacy allowed when

Answer 63

 Carrier is 25-35 years old  Has given birth to at least one child  Attend pre and post birth counseling  Adhere to medical treatment  Has medical decisionmaking authority over body  Intended parents must be a married couple, who exclusively contribte their own gametes to embryo  Must accept full parental rights and have a succession plan if they predesease  Agreement must be in writing and signed by carrier and husband if married, and both intended parents  No compensation other than expenses  Court approval must occur before transfer • All parties must be domiciled in La for 180 days before filing • Must include affidavit of infertility of intended parents by doctor • Court conducts background checks on all parties before issuing transfer order • Post birth order will recognize intended parents as parents instead of surrogate • If any of this stuff fails, then surrogate is considered mother

Question 64

paternity

Answer 64

either thru presumption or acknowledgement | OR action by child or father

Question 65

presumption of paternity attaches when

Answer 65

child born during marriage or within 300 days of marriage is presumed to be the child of the husband

Question 66

with two husbands, if first husband disavows

Answer 66

second husband is presumed to be the father. The second husband can disavow within 1 peremptive year of the judgment of disavowal.

Question 67

disavowal action by husband

Answer 67

husband must prove by clear and convincing evidence that he is not the father must be filed within 1 year of the birth of the child OR the day the husband knew or should have known that he was not the biological father, which ever happened later unless husband has been living separate and apart for 300 days preceding birth of child, then husband gets 1 year from notice in writing that someone has asserted that he is the father

Question 68

mother can file action to filiate child to second husband how/when

Answer 68

Action must be instituted by mother within 180 days of marriage to present husband, AND within 2 years of birth of child prove by clear and convincing evidence (DNA) second husband must acknowledge by authentic act then child is filiated to the second husband and filiation is extinguished to first husband

Question 69

3-party acknowledgement filiation

Answer 69

If blood and tissue testing shows that the bio father is someone who is not the husband or the former husband, then the mother, the presumed father, and the biological father can sign an authentic act acknowledging the actual paternity Must be done within 10 years of the child’s birth AND within one year of child’s death

Question 70

man marries woman with child not filiated to a man

Answer 70

then if husband acknowledges child by authentic act AND mother consents then presumed to be rather

Question 71

man may acknowledge a child not filiated to another man

Answer 71

 by authentic act  creates presumption that the man is the father  effects: presumption can only be invoked on behalf of the child. He can get custody, visitation, or be required to pay support. Cannot inherit or file a wrongful death suit.  Note: if the child is not biologically related to the man signing the acknowledgement, then the acknowledgement is null – would have to go through adoption proceeding.

Question 72

Child’s action to establish paternity

Answer 72

 May file this action (or mother may file action on behalf of minor child) even if filiated to another man  If father is living, must prove paternity by preponderance of evidence  If father is dead, then must prove by clear and convincing evidence  For succession purposes only, preemptive period of one year within death of father

Question 73

Father’s action to establish paternity (avowal action)

Answer 73

Must prove by preponderance of the evidence | This establishes full, reciprocal filiation rights between father and child

Question 74

adoption of adult rules

Answer 74

When adult is adopted by spouse or surviving spouse of person’s parent, then no judicial authorization necessary -- adopted person and parent consent in authentic act In nonstepparent adult adoptions, then adoptive parent and person being adopted must file a joint petition and court can authorize if in best interest of both parties In any adult adoption, consent of spouse of both adoptive parent and person being adopted must be obtained in authentic act Effective upon act or judgement’s registration

Question 75

tutorship definition

Answer 75

exists when there is no marriage, or marriage has terminated

Question 76

types of tutorship

Answer 76

tutorship by nature (parent) tutorship by will (later dying parent names tutor in a will) tutorship by effect of law (court selects from direct ascendants, siblings, aunts/uncles, or stepparents - considering BIOC) tutorship by appointment (when no relatives available, court appoints)

Question 77

qualified tutor must be

Answer 77

```  Must be over 18  Cant be interdicted  Not a felon  Not indebted to minor  Not adverse to minor in a lawsuit  Not infirm  Not of bad moral character ```

Question 78

duties of tutor

Answer 78

care for person of child, to rear and educate according to his station in life has fiduciary duty must file annual accounting of property of the minor

Question 79

extending tutorship beyond age of 18

Answer 79

for someone with less than 2/3 of the average intellectual functioning may be continuing can be contested by tutee or any other interested party

Question 80

emancipation

Answer 80

makes minor a major for all purposes judicial emancipation - standard is good cause only available for 16 and 17 year olds

Question 81

interdiction

Answer 81

when a person is incapable fo caring for themselves or administering their estates because of an infirmity, full or limited interdiction is available

Question 82

full interdiction standard

Answer 82

when a major person, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person AND his property, or is unable to communicate those decisions

Question 83

limited interdiction standard

Answer 83

when a major person, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person OR his property

Question 84

court appoints ___ to manage interdict's affairs

Answer 84

curator

Question 85

duties of curator to interdict

Answer 85

Duty of reasonable care, diligence, and prudence, and must act in the best interest of the interdict may be removed if in best interest of the interdict considers:  Whether curator is misapplying the interdict’s property  Gross misconduct or mismanagement of duties  Curator’s incapacity  Abuse of interdict

Question 86

standard court applies to interdict proceeding

Answer 86

clear and convincing evidence

Question 87

absent persons

Answer 87

When person has no representative in the state, and cannot be located with diligent effort then court may appoint curator to manage absent person's property

Question 88

absent person curator may

Answer 88

may administer and dispose of absentee’s property Curator must file an accounting of the management; and restore the property after the curatorship terminates After 5 years, curator may ask for a declaration of death – then property disposed through succession

Question 89

if absent person reappears

Answer 89

o During the curatorship, curator has property, accounts for it, gives for them o After declaration of death: o Then he can recover that property that still exists in the condition found from his successors or their transferees by gratuitous title  If property was sold, he can recover net proceeds  If property was encumbered, he can recover the diminution in value o Recovery of inheritance (ie, sister’s succession)  can recover inheritance from successors or transferees by gratuitous title  if it is the inheritance: then absent person gets 2 years to get property back from transferees from onerous title (ie, third party purchasers)

Question 90

timeline for father to file a disavowal action

Answer 90

either one year from birth of child OR one year from actual or constructive knowledge that child is not his (must prove by clear and convincing evidence that child is not his)